1994A Speaker Choosing the Next Speaker? Can It Really Be True?

By Norman J. Ornstein
Posted: Thursday, October 19, 2006
ARTICLES
Roll Call (Washington)
Publication Date: October 19, 2006
Many media outlets, including the Washington Post,
noticed Roll Calls reporting last week on the
little-noticed provision in House rules for
alternative Speakers in the event of a vacancy in the
position. Of course, the story is newsworthy because
Speaker Dennis Hastert (R-Ill.) is clinging
precariously to power, creating a sudden interest in
what happens if a vacancy in the Speakership were to
emerge.

But it should have been newsworthy a long time ago,
because the provision simply is unconstitutional--one
of several the House enacted at the instigation of
Hastert and Rules Chairman David Dreier (R-Calif.) to
try to show they were attentive to the problems of the
continuity of Congress if and when a devastating
terrorist attack or other catastrophe hit the Capitol.

As Roll Call noted, the House now has a list of
Speakers-in-waiting. If Hastert left the Speakers
office immediately, for whatever reason, the first
Member on the list--which was written by Hastert
himself--would be elevated to Speaker Pro Tem and
could act with all of the constitutional authority
vested in the office, until the Congress could convene
to duly elect a Speaker by the full House.

Article I, Section 2 of the Constitution says, The
House of Representatives shall chuse their Speaker.
It doesnt say, The Speaker shall unilaterally chuse
the next Speaker, and keep it secret until the
announcement is made. There is no way the framers
would have countenanced this kind of rule. Of course,
Hastert and Dreier, and their co-conspirator,
Judiciary Chairman Jim Sensenbrenner (R-Wis.), were
banking on the reluctance of any court to challenge
Congressional procedures, and the fact that the
challenge, if it came, would not have standing until
the rules provision was triggered.

This rules change was implemented in conjunction with
another change that allowed the Speaker unilaterally
to change the constitutional quorum requirement--a
flat and clear requirement that half of the Members of
the House be present to conduct official business--to
account for significant incapacitation, presumably in
the face of a terrorist attack.

In this case, the ringleaders of the change ignored
the strong advice of the one hapless constitutional
scholar who said this provision was OK--at least as
long as it received the joint concurrence of the
Speaker and the Minority Leader and gave the power to
the Speaker alone. Even this lone scholar, Walter
Dellinger, did not say the provision was
constitutional--only that it would not be challenged
in the aftermath of a catastrophe. Every other
scholar, from left and right alike, said this move
directly would contravene the plain language of the
Constitution. But that did not faze Hastert, Dreier,
or Sensenbrenner.

The way the House handled the continuity issues
offered a window into Hasterts vision of his role as
Speaker--not one thats out to protect the sacred and
vital role of the House, or to show a sensitivity or
fealty to the Constitution or Article I, but rather an
extension of the ends justify the means approach
that was applied to legislation and rules alike. We
did not need the scandal involving former Rep. Mark
Foley (R-Fla.) and Congressional pages to understand
the impact of this tunnel vision.

On another front: The president this week, to great
fanfare, signed the terrorist tribunal bill. Here was
the headline on House Majority Leader John Boehners
(R-Ohio) press release: Boehner Highlights GOP
Victory on Terrorist Tribunal Bill as President Bush
Signs Measure to Put Terrorists on Trial for Their
Crimes; Democrats Opposition to Terrorist Tribunal
Bill Another Vote to Undermine National Security.
Ignore the politics of the subhead to look at this
bill in another way.

This week, 60 Minutes had a piece on the Duke
University lacrosse players rape charges, one that
made a powerful, compelling and irrefutable case of
prosecutorial misconduct by District Attorney Mike
Nifong. Anyone following the case who had read the
several detailed, meticulous and even more devastating
pieces by Stuart Taylor Jr.--the thoroughly
independent and expert legal analyst for National
Journal--would not have been surprised. Taylor had
dissected the evidence and the timeline, and long ago
concluded that this case was a miscarriage of justice
and showcased misconduct by the prosecutor and the
police.

In the interest of full disclosure, I am friends with
the parents of David Evans, one of the three students
charged in the case. (Davids father is a law partner
of my wife.) But I want to reflect on this case only
because it is a useful example that underscores my
misgivings about parts of the terrorist tribunal bill.

There are no powers of government more significant or
far-reaching than those of policing and prosecution.
For whatever reason--including that police and
prosecutors may hold sincere beliefs that someone is
guilty of serious crimes--they can push the process,
stack the evidence, ignore contrary evidence and even
use the coercive power of forcing a defendant to take
on the staggering costs of a criminal trial to force
confessions or plea deals and ruin peoples lives.

This is not routine or common; most prosecutors, as
most police, exercise the appropriate mix of
aggressiveness and respect for due process and the
rule of law. But some do not, and the pressure to cut
corners is especially great if public opinion is
exercised over a traumatic event or a terrorist
threat.

I am stunned that more conservatives--people who have
a genuine disdain for big government and the abuses
that can occur by the power vested in the state--have
not shown more unease about prosecutorial and police
power, or more sensitivity to making sure that checks
and balances are in place to prevent or reduce abuse.
Habeas corpus is at the root of such concern.

True, Americans are unlikely to show compassion for
terrorists who are out to kill as many of us as they
can. But we are not talking about the rights of
terrorists; we are talking about the rights of those
accused of being terrorists. And we already have seen
cases of mistaken identity that might not be uncovered
if our system of checks and balances is shredded. The
terrorist tribunal bill is a better one because of the
principled intervention of Sens. John McCain (R-Ariz.)
and Lindsey Graham (R-S.C.), among others. Sadly, they
did not hold to their principles enough to make it a
good bill.